01997146
09-14-2001
Ricardo Bennett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ricardo Bennett v. United States Postal Service
01997146
September 14, 2001
.
Ricardo Bennett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997146
Agency No. 4D-280-0055-98
Hearing No. 140-99-8033X
DECISION
Ricardo Bennett (complainant) timely initiated an appeal from the final
agency decision (FAD) concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of race
(Black) and sex (male), when on December 19, 1997, he was issued a letter
of warning for unsatisfactory attendance.
BACKGROUND
The record reveals that complainant, a City Letter Carrier, Q-05, at
the postal facility in Wilmington, North Carolina, filed a formal EEO
complaint with the agency on April 18, 1998, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of discrimination based on race and sex. Specifically, the AJ concluded
that complainant did not show that the alleged comparative employees had
a similar unscheduled leave record. The AJ found that from April 29,
through December 1, 1997, complainant used approximately 87.03 hours of
unscheduled leave. The AJ further concluded that complainant received
previous discussions regarding his poor attendance.
The AJ concluded that even assuming arguendo that complainant established
a prima facie case of discrimination, the agency articulated legitimate
nondiscriminatory reasons for its action. The AJ further concluded that
the agency asserted and provided supportive evidence that complainant
received a letter of warning, as a step in progressive discipline, due
to his excessive unscheduled absences from work. The AJ concluded that
complainant failed to establish that he was subjected to discrimination.
The agency's final action implemented the decision of the AJ.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when she concluded that
the agency provide evidence that complainant's supervisor discussed the
attendance record with him. Complainant asserts that the agency failed
to cite a specific rule, regulation, manual or policy that he violated.
Complainant contends that the mere fact that he used unscheduled leave
in itself is not a violation of any rule. Complainant further asserts
that the AJ's decision is not supported by the evidence submitted by him,
nor substantiated by the evidence submitted by the agency.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgement a court does not sit as a
fact finder. Id. The evidence of the non-moving party must be believed
at the summary judgement stage and all justifiable inferences must be
drawn in the non-moving party's favor. Id. A disputed issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celtotex v. Carett, 477 U.S. 317,
322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st
Cir. 1988). A fact is "material" if it has the potential to affect
the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, summary judgement is not appropriate. In the
context of an administrative proceeding under Title VII, an AJ may
only properly consider summary judgement after there has been adequate
opportunity for development of the record.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Applying the standards set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
Commission finds that complainant did not establish a prima facie case of
discrimination based on race or sex, since he did not demonstrate that an
employee outside of his protected group was treated more favorably. Nor
did he present any other evidence from which an inference of race and/or
sex discrimination could be drawn.
Complainant alleged that his supervisors never discussed his attendance
record with him, but the record reveals that on June 14, 1997, management
had an official discussion with complainant regarding his record
attendance. Complainant also contends that the agency failed to cite
a specific rule that he violated. However, the record shows that in a
letter dated December 16, 1997, directed to complainant, the agency cited
Section 666.81 of the Employee and Labor Relations Manual, which states:
�All employees are required to be regular in attendance.� The agency also
cited Section 666.82 of the Employee and Labor Relations Manual, which
states, in part: �Employees failing to report for duty on scheduled days,
....� shall be disciplined. The agency further cited Section 666.83 and
Section 511.43 of the Employee and Labor Relations Manual. The agency
cited Section 112.22 of the M-41, City Delivery Carrier Handbook, which
instructs employees to �report to work promptly as scheduled.�
Accordingly, the agency provided a legitimate, nondiscriminatory reason
for its action, namely, complainant's poor attendance record and the
fact that complainant received the letter of warning, as a step in
progressive discipline. Complainant failed to raise a genuine issue of
material fact in regard to this explanation. Complainant did not argue
that a white female employee with an attendance record similar to his,
was treated more favorably. Nor did he dispute that he used an inordinate
amount of unscheduled leave and that a Letter of Warning was issued as
progressive discipline.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2001
__________________
Date